PRACTICE AND PROCEDURE - jurisdiction - services provided to a participant when NDIS Plan funding depleted - whether respondent's decision to refuse to pay service provider's invoices is reviewable - decision is not reviewable - the Tribunal does not have jurisdiction.

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency [2020] AATA 360

Deacon & National Disability Insurance Agency [2022] AATA 3209

Lifeful Coordination & Management Pty Ltd & National Disability Insurance Scheme [2023] AATA 155

NDIS (Protection and Disclosure of Information) Rules 2013

1. Nganana Inc. ("the Applicant") is a not-for-profit service provider. It was providing disability supported independent living (SIL) services to an National Disability Insurance Scheme ("NDIS") participant. It continued to provide those services after funding in the participant's NDIS plan had been exhausted.
2. In its application to the Tribunal, the decision which it sought to have reviewed was described as follows:

"Nganana Inc. has not been paid invoices for services delivered to a participant living in supported independent living (SIL) because funding was exhausted early due to NDIA scheduled financial deadlines not being met. The NDIA wanted the participant in question currently living 1:1 to live with another participant, despite behaviours of concern and their choice not live with anyone else. The NDIA regardless generated a 12 month plan with 6 months 1:2 funding. This submission seeks to review the NDIA's planner's decision to refuse payment of invoices totalling over 88 thousand dollars for services delivered for the remaining quarter of the participant's plan after the plan generated by the NDIA was exhausted."

1. The participant is in his early twenties and has an intellectual disability, challenging complex behaviours and anxiety which require high levels of support. Prior to emergency accommodation support from the Applicant, his living arrangements were unsettled and unsafe and required hospitalisation. The Applicant provided the Tribunal with information about its services and its commitment to delivering developmental, disability supports under the NDIS. The focus on developmental service delivery was expressed as: "supporting participants achieve person centred self-directed goals and objectives co - designed with the participant, the family and significant others within their support network. It includes supporting participants to (re) build family and community connections and capability of the participant to live independently."
2. The participant was placed under the full guardianship of the Office of the Public Advocate ("OPA") by order of the South Australian Civil and Administrative Tribunal ("SACAT") on 25 June 2021.
3. In its initial submission to the Tribunal, the Respondent, the National Disability Insurance Agency ("the Agency") contended that the matter should be dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") as the Tribunal does not have jurisdiction to review the application. It was submitted that failure to pay an invoice does not constitute a decision that is reviewable by the Tribunal.
4. The Tribunal received comprehensive written and oral submissions from both parties in this matter.
5. In responding initially to particulars in the Applicant's submissions, the Agency raised issues about safeguarding the privacy of the participant in accordance with the NDIS (Protection and Disclosure of Information) Rules 2013.
6. That concern was addressed in correspondence from the Assistant Public Advocate who wrote to the Applicant on 4 October 2022 and authorised the release of all relevant information and documentation relating to the supports provided to the participant between 1 January 2021 and 31 December 2022. That authorisation was confirmed further in an email to the Agency on 13 October 2022. It was also acknowledged that OPA had knowledge of the proceedings in the Tribunal in relation to the protected person, while also noting that the proceedings were not brought by OPA as guardian.
7. The Tribunal made orders on 16 December 2022 which included an order pursuant to s 35 of the AAT Act for restrictions regarding publication and the disclosure of information tending to reveal the identity of the NDIS participant in this proceeding, together with restrictions that confine the disclosure of evidence and documents to the parties, OPA, and their representatives. The Agency was directed to provide the Tribunal with information authorised for release by the Assistant Public Advocate.
8. Initially, the Tribunal was asked to rule on questions of law, including the standing of the Applicant, about which it had minuscule amounts of factual detail. Without the consent of the Assistant Public Advocate to release the relevant information, there was insufficient material about the history and the content of relevant interactions between the parties prior to the lodging of the application to the Tribunal. The orders made on 16 December 2022 enabled the Tribunal to eventually receive and then assess the applicable material in the Agency's possession, some of which appeared to have been available previously to the Applicant, and most of which prior to the Tribunal's orders was unavailable to the Tribunal.
9. The participant's NDIS plan which commenced on 19 April 2021 included SIL funding for day to day needs living with two other people. In accordance with procedures applicable at that time, a change of circumstances form was submitted by the participant's guardian on 1 December 2021. In that form the guardian wrote that the participant's disability support needs had changed and: - "due to ongoing behaviours of concern including wielding weapons, a new plan is requested with ongoing 1:1 SIL funding until participant is settled and positive behaviour plan is having a positive effect. It is unsafe for participant to live with others at this current time." A new 12 month NDIS plan which was approved on 12 January 2022 included the same SIL provision for living with two other people. Following a further unscheduled review, another 12 month plan was implemented with a commencement date on 14 August 2022. Once more, the SIL allowance was based on the participant living with two other people, albeit with a slight increase in core support funding.
10. The application to the Tribunal was lodged shortly thereafter by the service provider, on 16 August 2022. The application for review by the Tribunal referred to the decision under review as a complaint which was submitted on 21 April 2022 and rejected approximately three months later. Reasons for the application included the following commentary: -

"The decision is wrong because what the NDIA planners are doing is making the provider financially responsible for NDIA deadlines around a participant's willingness and capability to cohabitate, despite the provider having no funded services with influence over service delivery from this perspective.

The participants plan included Specialist Support Coordination (SSC), Positive Behaviour Support (PBS), and daily living therapeutic funding. The SSC was unable to find a PBS practitioner for the duration of the 12 month plan to help meet behaviour and capability requirements. Therapy budgets were exhausted supporting the participant to transition into shared care.

The provider is funded under the NDIS to provide disability support workers qualified, trained and capable of supporting the participant with their independent living. The provider is not funded to address behaviours of concern preventing cohabitation. The provider is not funded to find a suitable living companion and transition them into group living.

It is wrong therefore to make the provider liable for the task of supporting a participant's understanding and ability to live with others, especially when there are several other external service providers with significant funding who are tasked specifically to manage and facilitate the participants transition into shared care."

1. The Agency's Interaction notes include summaries of communications about the SIL funding, a proposed step-down model of support, and the social and community participation budget. The notes include records of communications involving a support coordinator, an OPA guardian and Agency representatives. While the SIL funding was being depleted at a 1:1 support ratio, including depletion of funds for support coordination, the multiple risks for the participant included the risk of having no funds left in his NDIS plan, a lack of continuing supports, the absence of a positive behaviour support plan, while the primary issue of the level of SIL supports remained unresolved. The crisis was escalating day by day.
2. When the SIL funding was exhausted the Applicant maintained its commitment to supporting the participant, seemingly in the expectation that the encounters between the Agency, the support coordinator, and others, would lead to a resolution. It didn't. And, in the absence of a resolution, the risks for the participant appeared to include alternative accommodation, if it could be found, or at worst homelessness or hospitalisation. The essence of the funding problem prior to the implementation of the August 2022 plan was summarised in the Agency's interaction note in this way: -

"The total funded supports of previous plan are $333,100.77, 12 months. Previous plan was over utilised. Reasons for over utilisation are that plan was built with the intention of participant sharing supports within 12 months and this has not yet been able to occur. (Participant) was on wait list for some time before being connected to a behaviour practitioner to work on his BoC and have staff trained to implement the strategies.SIL provider for this reason continued to use 1:1 ratio of funding to assist (participant) leading to over utilisation of SIL funding."

1. In Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency [2020] AATA 360 ("Complete Nursing and Home Care") the Tribunal (comprising Deputy President Forgie) determined that it did not have jurisdiction to review the Agency's decision not to pay invoices, one for $2,639.28 and the other for $4,363.44, for two participants for whom services were provided under service agreements. Although the services were provided "in response to cries for help", they were not authorised under the participants' NDIS plan budgets. The Tribunal explained that the National Disability Insurance Scheme Act 2013 ("the NDIS Act") sets the boundaries for the scheme and within those boundaries there are limitations on the types of decisions which the Tribunal can review. The Tribunal explained at [8]: -

"It is in this context that the NDIS Act provides for review of decisions made under it. Provision for review is made of some decisions and not of others. Determining whether the Tribunal has jurisdiction or power to review a particular decision is a matter of statutory interpretation. The starting point must always be the provision that gives the Tribunal power interpreted in the context of the relevant enactment having regard to the particular words used by Parliament and having regard to the object and underlying policy of the enactment. Parliament has chosen those decisions which should be reviewed and those which should not."

1. The table in s 99 of the NDIS Act sets out the reviewable decisions under the NDIS Act. Section 100(2) of the NDIS Act provides that a person directly affected by a reviewable decision may request the decision-maker to review that decision. On internal review, pursuant to s 100(6) of the NDIS Act the reviewer must make a decision confirming the reviewable decision, or varying it, or setting it aside and substituting a new decision.
2. The Tribunal's jurisdiction is established by s 103(1) of the NDIS Act: -

(1) Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6**)**

1. The table of reviewable decisions in s 99 of the NDIS Act specifies 33 items. Each one of those items specifies the reviewable decision, the provisions of the NDIS Act under which the reviewable decision is made, and the identity of the decision maker. The Tribunal confirmed in Complete Nursing and Home Care, that none of those reviewable decisions are decisions that relate to payment to a service provider.

1. In its initial written submission, the Agency pointed to a relevant chronology, namely: -
   • 4 May 2022 - the Applicant issued an invoice to the respondent for services given to the participant;

• 12 May 2022 the Applicant was notified that invoices would not be paid; and

• 16 August 2022 the Applicant lodged an application to the Tribunal.

1. The submission was developed further and relevantly included these points: -
   • the decision by the Agency not to approve the invoice dated 4 May 2022 is a payment decision by the Agency's Finance Branch which is not a reviewable decision under s 99 of the NDIS Act;

• there is no internal review decision by the Agency under 100(6) of the NDIS Act that is capable of review by the Tribunal, having regard to s 103 of the NDIS Act;

• the matter should be dismissed under s 42A of the AAT Act on the basis that there is no decision that is reviewable by the Tribunal; and

• in addition to those submissions, the Agency submitted that the Applicant service provider does not have standing to bring the application for review before the Tribunal.

1. The Applicant submitted that the relevant decision is not a payment dispute. While non-payment of invoices is part of the factual scenario, it is not the central issue which, in fact, relates to the denial of an "independent review." The Applicant provided a summary of requests to the Agency which were made by the submission and resubmission of change of circumstance forms between July 2021 and December 2021. This developed into a proposition that the combination of lack of any response or adequate response by the Agency after the provision of SIL quotes and change of circumstances forms "demonstrates ample opportunity provided to the NDIA to implement a section 48 plan review, and multiple junctures at which decisions were made to prevent negotiations around reasonable and necessary funding as per the NDIS legislation." Furthermore, it was submitted that the circumstances amounted to either a decision by the Agency not to vary the participant's plan, or alternatively a decision not to conduct a reassessment, and in each instance, there was, properly interpreted, a reviewable decision.

1. It appears, however, that the participant's NDIS plan which commenced on 11 January 2022 was the consequence of the review which the Agency conducted under s 48 of the NDIS Act. So much is apparent from the Agency's correspondence to the participant dated 12 January 2022 which attached the new plan. The letter included advice to the participant about his right to seek internal review within three months if there was dissatisfaction with the decision to approve the plan. That decision was a decision which the Agency made in accordance with s 33(2) of the NDIS Act to approve a statement of participant supports in the new plan. Such a decision is reviewable under the criteria for internal and external reviews of decisions (ss 99 - 103 of the NDIS Act).
2. The mechanism of an internal review would enable questioning and reassessment of the level of supports, the funding for those supports, "overutilisation" of funds, the step-down approach and the positive behaviour support plan, in the context of single versus shared accommodation. The participant, via his guardian, did not seek an internal review.
3. Similarly, the new NDIS plan was approved on 14 August 2022 following a s 48 review. The Agency wrote to the participant on 16 August 2022 attaching the plan. That letter included advice that an internal review could be sought within three months. The NDIS plan set out the participant's plan goals, the first one being a short-term goal that the OPA guardian would like the participant to be supported to live independently in shared SIL accommodation. The Agency's interaction note dated 14 August 2022 referred to the participant's increasing risk of homelessness, risks about unsuitable housing, risks about overutilisation of funding in the previous plan, and the continuing aim to assist him with finding suitable co-tenants or suitable alternative accommodation. The interaction notes subsequently record communications between the Agency and the Support Coordinator through to 9 September 2022. In the meantime, the Applicant had lodged the application to the Tribunal on 16 August 2022
4. Having reviewed the documents and considered the parties' submissions, the Tribunal does not accept the Applicant's argument that there was a s 99 reviewable decision under items 6A or 6B (a decision not to vary a participants plan) or item 6C (a decision not to conduct a reassessment of the plan). In fact, the January 2022 plan and the August 2022 plan were each implemented following s 48 reviews according to processes in place at that time. The Applicant's submission that a "payment decision" is not the central issue, can be understood in the context of the concerns and negotiations about the services which were most appropriate for the participant. In those negotiations, there was a disagreement about the SIL support ratio, and particularly from the Applicant's perspective what was required to implement best practice. Nonetheless, the s 48 reviews took place and while neither of them made provision for the amount of funding and the type of SIL support that the Applicant considered appropriate, internal review requests were not forthcoming.
5. While the Applicant acknowledged the legislative framework and, in particular the provisions of s 99 of the NDIS Act, it was submitted that the decision in question should not be interpreted as a payment decision and the Tribunal should proceed to a determination, presumably in favour of the Applicant, even though this may amount to a "stretching of the boundaries of the scheme of review." The Applicant's submission cannot be accepted. It would appear to relate to comments which the Tribunal made in Complete Nursing and Home Care at [8], and which apply in this case, namely that: -

"It is not for the Tribunal to attempt to stretch the boundaries of the scheme of review established by the Parliament in an endeavour to make the Agency accountable for its expenditure and administration. Parliament will have had that in mind when it selected the decisions that the Tribunal might be asked to review just as it will have had in mind other means to ensure that the Agency is accountable for its administration of the NDIS. Those other means will include the Commonwealth Ombudsman and the Auditor General as well as, through the responsible Minister, Parliament."

1. The conclusion in this matter must be that the Agency's decision to decline payment of invoices to the Applicant in the sum of approximately $88,000 is not a decision which is specified in ss 99(1) or (2) of the NDIS Act. Accordingly, the Applicant was not entitled to seek review of a decision under s 100(2) of the NDIS Act. There is no decision by the Agency which falls within the provisions of s 100(6) of the NDIS Act. In the absence of any such decision, the Tribunal does not have a power of review under s 103 of the NDIS Act.
2. During the directions hearings, the Respondent submitted that the Applicant lacks standing under s 27 of the AAT Act to bring the application for review before the Tribunal. Initially that submission was an alternative, secondary submission to the primary one that the Tribunal does not have jurisdiction under s 103 of the NDIS Act. It developed, later, into a primary submission. Reference was made to decisions of the Tribunal (by Senior Member Parker) in Deacon & National Disability Insurance Agency ("Deacon")[1] and Lifeful Coordination & Management Pty Ltd & National Disability Insurance Scheme.[2] In each one of those reviews, the Tribunal determined that the applicant did not have standing under s 27(1) of the AAT Act to bring the application. The facts in each of those cases were dis-similar to each other, and of little similarity to the present case.
3. In this matter, once the Tribunal was eventually provided with the documentary material, the problem about jurisdiction became clear, namely that the decisions in question about payment of invoices did not amount to decisions for which the Applicant could seek review. While there may have been various reasons why the guardian did not seek internal reviews of the decisions to approve the NDIS plans in January 2022 and August 2022, that type of review was not pursued. The Applicant continued to provide the particular services which the participant continued to receive. There is no suggestion that the participant wanted alternative services or services from a different service provider. It is unfortunate for all concerned that the differences were not resolved. However, as SM Parker pointed out in Deacon, the outcome of a plan review process under the NDIS Act is to devise and periodically reassess statements of participant supports ("SOPS"), and NDIS plans for an individual participant. The participant, or the guardian, or the plan nominee- "are the relevant persons to be involved in the establishment and reassessment of the SOPS and NDIS plans and to facilitate the use of the approved funding to acquire the funded supports for or on behalf of the individual participant."[3]

1. For the reasons set out above, the Tribunal decides that it does not have jurisdiction to review the respondent's decision to refuse to pay the applicant's invoices seeking payments for services provided to a participant under the National Disability Insurance Scheme. Pursuant to s 42A(4) of the Administrative Appeals Act 1975, the application for review is dismissed.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

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[1] [ 2022] AATA 3209.

[2] [2023] AATA 155.